March 30, 2012 6:00 PM

Court Slashes Baker & Hostetler Fees in Maine Redistricting Litigation

Posted by Claire Zillman

Citing overstaffing and redundant work, a three-judge federal panel has ruled that the fees requested by lawyers for plaintiffs in a lawsuit that forced the redrawing of Maine's two congressional district lines should be cut by about 53 percent, from roughly $150,000 to about $70,400.

The lawyers in question—Timothy Woodcock of Eaton Peabody and four Baker & Hostetler attorneys, including election law counsel E. Mark Braden—represented William Desena and Sandra Dunham who sued the state of Maine, Governor Paul LePage, three other state officials, and the state's Bureau of Corporations, Elections and Commissions in March 2011. (Read the complaint.)

At issue in the suit were the results of the 2010 U.S. Census, which showed Maine adding 53,000 residents over the previous decade. Most of the newcomers, census data showed, lived in state's first congressional district—to the point that the population spread between it and Maine's second congressional district had swollen from 23 people to 8,669.

The population growth and the looming 2012 elections notwithstanding, the state's constitution dictated that redistricting would not occur until 2013. Desena and Dunham—residents of the more populous, Democratic-leaning first congressional district, which sits in the southern part of the state—claimed that given the census figures, waiting until next year to redraw congressional lines would "improperly dilute" residents' constitutional right to vote in 2012, the complaint said.

The defendants agreed with the plaintiffs that Maine’s congressional redistricting scheme was unconstitutional as applied given the census data. A month after the suit was filed, however, Maine's Democratic party joined the suit as an intervenor, claiming the redistricting plan was not unconstitutional. That left the plaintiffs and defendants with no choice but to fully litigate the matter.

A three-judge panel ruled in June 2011 that the existing map was indeed unconstitutional and that the state should draw new lines dividing Maine's congressional districts before January 1, 2012. LePage signed the new map into law in late September 2011, according to court documents, and the state constitution was amended to align redistricting with the census data following after voters approved a referendum on the issue in November 2011.

The plaintiffs and defendants agreed on the constitutionality issue at the heart of the suit, but the question of what legal fees and expenses the plaintiffs and their counsel could recover as the lawsuit’s prevailing party was much more contentious.

Plaintiffs counsel asked for about $150,000 in fees and expenses, broken down as follows: about $41,200 for Woodcock and his paralegal, $6,200 for data analyst Clark Bensen, and approximately $103,000 for Baker & Hostetler attorneys, including about $25,000 for redistricting litigation veteran Braden. 

The defendants, represented by Maine's attorney general's office, balked at the request, claiming the request was excessive given that only Woodcock made an appearance in the case. The participation of the Baker & Hostetler attorneys, the data expert, and the paralegal constituted overstaffing and caused redundancies, the defendants claimed. 

The defendants also claimed that Braden's hourly fee of $595 was too high, because he had the same amount of experience as Woodcock but charged double the latter's rate of $295. The fees of three Baker & Hostetler associates, which ranged from $350 to $420 per hour, were also excessive based on their relative inexperience, the defendants maintained.

The defendants argued that the associates only deserved to get $175 an hour, the prevailing rate in Maine for a similarly credentialed attorney. The defendants also moved to strike the fees racked up by data analyst Bensen because they said they could not determine what he did and had difficulty figuring out "why his expertise in census data was needed in this case."

Taking all their objections into account, the defendants asked the court to reduce the plaintiffs' request for fees and costs from about $150,000 to $47,200.

In the end, the three-judge panel didn't cut quite that much. In their March 21 order, the judges ruled the plaintiffs' lawyers were entitled to only $70,400 of the requested amount, because the "plaintiffs' overall staffing pattern was excessive, resulting in the billing of duplicative and unproductive hours."'

The judges cut Braden's billing rate from $595 to $475, concluding that the plaintiffs did not adequately prove that the amount he was billing was the prevailing rate charged for such representation in Washington, D.C., where Braden works. Based on the reduced rate, Braden was awarded about $14,000 rather than the $25,000 he sought.

The judges approved the defendants' request to cut the Baker & Hostetler associates' hourly rate to $175. The court ruled the plaintiffs did not establish that the associates had sufficient specialized experience to warrant higher out-of-state rates.

"Having reviewed the work described in the billing records of [the associates], the court is satisfied that the work could have been completed by comparably credentialed Maine-based associates," the order says. The court also halved the associates' total billable hours, taking into account what it considered redundant and overlapping work.

The court also denied all of the fees attributed to expert Clark Bensen. The judges found that the plaintiff did not need to rely on expertise in analyzing population data and drawing maps for this litigation. 

The judges also shaved about $7,500 off the amount Woodcock initially requested by rejecting his request for fees related to the time he spent talking to the media about the case, corresponding with Bensen, and communicating with people not critical to the litigation.

Braden, who got involved in the case through an existing relationship with Bensen, served as lead counsel for redistricting litigation in five states during the 2000 decennial period. He also worked on redistricting matters in Ohio and New Mexico stemming from the 2010 Census. He says he has seen his fee requests in redistricting cases cut before, but not to the same degree.

"We've had minor reductions that amounted to less than 10 percent. This is much larger," he tells The Am Law Daily. He attributes the judges' decision, in part, to the fact that the case was litigated in Maine, where lawyers' rates are lower. "If this had been in New York or even Boston, no one would've cared to blink an eye," he says, adding, "I thought I was a bargain at $595."

Woodcock agrees. "I thought we had a reasonable argument for requesting out-of-state rates," he says. "The overriding theme was that the court was going to apply local hourly rates for out-of-state work."

Woodcock declined to comment on whether he and fellow plaintiffs counsel plan to appeal the decision."We have it under advisement," he says. 

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